The much denigrated opening statement. It’s not flashy, by law it’s “constrained” to the evidence that will be presented, so no argument, and it’s not meant to wow the jury, just set them up.
When my clients go to trial, it’s usually 60 – 40 jury to bench trial. In a bench trial, frequently opening statements are waived. Judges are smart people who are generally, at the point that the case is going to trial, at least familiar with the contours of the case. They’ve seen it all before, and an opening statement is generally unnecessary. Not always, just not usually.
Juries are different. These people don’t know you, or your client, from Adam. Put your best face forward, give them the best possible take on the case you can, and set your theme.
I was supposed to go to trial this morning, and deliver an opening statement. I was running through it in the shower. The first opening statement I gave, I practiced for days. I wrote it out, I worked on it quite a bit. When it came time to deliver, I was scared stiff and still missed a big chunk of it. We won the case, but I still felt less than stellar about it.
Now, I don’t use anything written out. I remember my themes, I use notes, but I don’t write out the actual content. This is common sense to a seasoned trial lawyer, but it’s true. An opening, and / or a closing can’t be read like a script. It has to come out like a conversation, or oratory, not a still, formal speech.
That said, I was disappointed. It’s just not as fun to have a trial set and have all your juices flowing then have it cut off because the State isn’t ready. And when we took them to the brink in this case (i.e. being ready for trial today), suddenly, a possible offer of drug court came out.
A possible felony conviction to be traded for a few classes and then dismissal? Why yes, we’ll take that offer.